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A FORMER RALLY DRIVER FIGHTS OVER SHARES IN A FARM THAT OWNS AN EXCLUSIVE GOLF RESORT IN THE COAST.

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Rally driver Alastair Mark Cavenagh.

BY SAM ALFAN.

The High Court in Malindi has stopped two shareholders from dealing with the shares held by Mauritius firm to the detriment of a fellow shareholder.

Justice Stephen Githinji issued an injunction restraining Christopher Gordon Horsey, David Horsey from dealing with shares at First European Finance Investments ltd, pending the determination of a case filed by former rally driver Alistair Cavenagh.

First European Finance Investments owns Sunsail Trading company limited, Vipingo Ridge limited and Vipingo Beach limited.

Through lawyer Gitau Singh, Cavenagh also sought an order for accounts be taken to ascertain amounts expended by the co-directors Christopher and David Horsey in acquiring shares held by the First European Finance Investments ltd.

The rally driver also want two of the nine shares in the companies held by First European Finance Investments ltd be transferred to him or to any entity of his choice.

“Alternatively, an order that all shares of the First European Finance Investments ltd in the companies be put up for sale by an estate agent appointed by thr court to be sold to the highest bidder,” says Cavenagh.

In his court papers, the rally driver told the court that the Horseys have threatened to take steps to transfer shares held by First European Finance Investments ltd.

“I am apprehensive that unless restrained from dealing with the First European Finance Investments ltd shares, Respondents may putthem out of reach of him and use them to detriment of the companies,” Cavenagh told the court 

He adds that First European Finance Investments ltd is incorporated in Mauritius and it is a special purpose vehicle (Spv)  and owns shares in Vipingo Ridge Ltd, Vipingo Beach ltd and Sunsail Trading company which shares were previously owned by David Mitchell.

In the year 2004, Cavenagh and Mitchell came up with the idea of developing a golf course at the coast and incorporated a company to acquire the property with the two shares of them as equal shareholders. After acquiring the shares Mitchell invited Christopher and David as investors. The parties through the company have developed a world class golf club, club house and sold plots to about 300 homeowners.

Cavenagh adds that a disagreement over management arose between David Mitchell and Christopher and David Horsey and to stay possibility of Mitchell selling his shares to First European Finance Investments ltd.

“I requested to structure a transaction thereby David Mitchell would sell his shares to First European Finance Investments ltd without Mitchell being aware that Christopher and David Horsey were involved,” says Cavenagh.

According to the rally driver, in consideration of him convincing Mitchell to sell his shares to the two, they were to Finance and enable him acquire 2/9 of the shares in First European Finance Investments ltd. He adds that he didn’t only convince Mitchell to sell his shares to the Mauritius firm at USD6 million but also subsequently, successful reduced the purchase price shares to USD5 million.

However, when he requested Christopher and David Horsey to transfer his shares, they have refused to do so claiming that the he only had a financial interest in the sale of shares. Initially the two had agreed that upon payment of monies expended, he could transfer the shares to himself or any entity of his choice.

He told the court that the two have since requested First European Finance Investments ltd in Mauritius to produce documents relating to the transaction and two to sign some historic share certificates.

“Further, to the detriment of the company and its shareholders, Christopher, David Horsey and First European Finance Investments ltd have been using the board seats acquired by the virtue of FEFI shares terminated the services of experts who had responsible for the success of the companies and replaced them with family members.

PAG CHURCH GIVEN TWO MONTHS TO HOLD ELECTIONS.

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BY SAM ALFAN.

A judge has directed Pentecostal Assemblies of God (PAG-Kenya) to conduct elections within 60 days.

High Court judge Jacqueline Kamau said the elections should be supervised by the Registrar of Societies.

Justice Kamau further ordered the Church Constitution of 1998 be amended within the limits determined by members of the Church within 120 days from the date of the judgement.

“A declaration be and is hereby made that Article 12.4 of the PAG-K Church Constitution was a contravention of the Constitution of Kenya in so far as it discriminated against women from vying for the position of general officers,” court declared 

While delivering a judgement in the dispute, which has been in court for the last seven years, Justice Kamau said in the event that the church does not hold elections and amend the Constitution as directed, the Registrar of Societies will only be at liberty to extend the said periods for a further thirty (30) days for each respective action.

“If the parties herein will not comply with the directions of this court to hold the elections and amend the PAG K- Constitution during the extended period as foresaid, the Registrar of Societies will be at liberty to exercise powers under the relevant provisions of Section 12 of the Societies Act Cap 108 (Laws of Kenya) without further reference to this court,” ruled the judge in her decision.

Elijah Kathiari Mikwa, Daniel Oyaro and Mark Nangalama moved to court seeking to declare several articles of PAG-Kenya Church constitution 1998 were unconstitutional.

They sought the court to compel the Registrar of Societies to invoke section 12 of the Societies Act until the above provisions of the Pentecostal Assemblies of God church constitution amended are amend accordingly.

In the petition, they also urged the court to declare account No. 1260277681614 at Equity Bank Kisumu branch and account No. 0111370000002 held at Rafiki Microfinance Bank in Mbale were commenced unlawfully and the same be declared illegal..

Further, they urged the court to issue an injunction barring Rev Patrick Lihanda, Rev Zedekiah Orera, Carol Andisi, Freeson Ondengo among others and executive committee of PAG Kenya from acting, utilizing the PAG church funds or running and operating any church bank account.

TEA AGENCY JOIN LIST OF FIRMS OPPOSED TO MAN AT THE CENTER OF SEX SCANDAL ASCENDING TO LEADERSHIP POST.

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BY SAM ALFAN.

Kenya Tea Development Agency (KTDA) and Tegat Tea Factory Limited have supported a petition seeking to declare a man at the center of sex scandal unfit to hold public office.

In affidavits filed in court, KTDA and Tea Board of Kenya said they support the case seeking to block John Chebochok, who was recently elected a director for Tegat/Toror Tea Factory, from holding the position.

“Allowing John Chebochok to be approved as a director would be a grave disservice to the company’s shareholders, including the farmers, employees, consumers and investors who rely on the company’s good governance and ethical leadership for their economic well-being,” says KTDA.

KTDA further states that by allowing Chebochok to become a director would contravene standards set out in chapter 6 of the constitution and set a dangerous precedent for the company and the broader tea factory.

KTDA further adds that the election of Chebochok poses a continuous risks to the company’s reputation and its relationships with key shareholders and international buyers.

“The persistent association with the Chebochok may lead to further economic isolation and financial,” says KTDA.

Further, KTDA says Chebochok failure to uphold the principles of leadership and integrity undermines public confidence in the governance structures of the Tegat Tea factory and the larger KTDA network.

The agency said it believes that Chebochok’s actions have demonstrated a lack of integrity and ethical conduct expected of a person holding such a position and his previous conduct of exploiting employees for sexual favours is not consistent with the ethical standards required.

Tegat factory in response acknowledge the serious integrity concerns raised against Chebochok by various actors and stakeholders in the sector.

In response through Dickson Kirui, the factory admit major buyers of their tea including but not limited to Lipton Teas and Infusions ltd, United Kingdom Tea and Infusions Association and James Finley ltd have categorically stated that they will not purchase any tea from the factory in the event Chebochok is appointed as director.

“If the said buyers decline to purchase our tea courtesy of Chebochok’s appointment as a director, the company’s financial status would severely affected thus prejudicing the shareholders,” says Kirui.

He urges court to consider the application by several lobby groups seeking to block Chebochok from being sworn in and declared unfit to hold public office.

However, the factory and KTDA has denied claims that they played any role in clearance and approval Chebochok to contest for election as a director of Tegat Tea Factory.

KTDA in a replying affidavit through company secretary Matthews Odero says both factory and KTDA had no control over the nominations of persons vying for the position of directors, their vetting, the management of any election disputes that arose after the said election.

Last year, Chebochok was caught in a storm following an exposé by the BBC demanding sex from tea pickers, in abuse of his position and authority.

Odero state that pursuant to a mediation settlement agreement in two petitions in Nairobi, the responsibility of overseeing the elections of directors of smallholders tea factory was placed in the hands of the Tea Board of Kenya and pursuant to the said agreement, Tea Board was also required to nominate an independent electoral management body to conduct the said elections.

According to Odero, the responsibility of KTDA and small shareholder factories had in respect of the said election was catering for the cost of conducting elections.

The appointment, therefore suffered procedural infirmity and illegality.

LENDER TO COMPENSATE ADVOCATE FOR WRONG WITHDRAWAL OF HIS MONEY.

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City lawyer Bryan Khaemba. /PHOTO BY S.A.N.

BY SAM ALFAN.

Kenya Commercial Bank (KCB) has ordered to pay a city lawyer Sh20,000 for breach of its duty after the lender wrongly withdrew money from his bank account to settle a third partys’ debt.

Resident Magistrate Caroline Ireri ordered KCB to pay the former Kenya Judges and Magistrates Association secretary General Bryan Khaemba the amount after finding that the lender made the mistake.

Lawyer Khaemba told the court the lender withdrew Sh. 53,315.84 from his account as a deduction for a loan facility advanced to a third party yet Khaemba has never been a guarantor.

“This unauthorized action entitles the claimant (Bryan Khaemba) to damages. Consequently, the claimant is awarded Sh. 20,000 for breach of fiduciary duty,” ruled R.M Ireri.

Khaemba had filed a case seeking judgement against KCB Bank for Sh53, 315.84 damages for breach of contract, compensation, cost and interest.

The former magistrate told the court that he was entitled to general damages since the bank has a duty to take care of the funds in his account but they caused a deduction to be done to pay a 3rd party’s loan unknown to him causing him to suffer inconvenience. 

The court found that the existence of Bank-customer relationship was evident as the Bank acknowledged its error by refunding money wrongly debited from Khaemba’s account to settle a third party’s debt.

KCB Bank had argued that that there can be no award of general damages on a claim anchored on breach of contract.

The court in it decision observed that it was not disputed that lawyer Khaemba money was deducted from his account.

EMBATTLED TEA DIRECTOR MAINTAINS HIS INNOCENCE OVER SEX FOR WORKS CLAIMS.

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BY SAM ALFAN.

Embattled director of Tegat Tea Factory in Kericho county John Chebochok has urged the High Court to dismiss a petition seeking to find him unfit to hold public office.

Chebochok was recently elected the director causing uproar among human rights groups as well as multinationals opposed to his directorship.

Chebochok said he had written to BBC Africa seeking compensation over defamation allegation in the exposé aired last year accusing him of soliciting for sex from tea pickers.

He says he met all requirements that occasioned him to be validly and democratically elected by farmers as the director of Tegat/Toror Tea Factory on 28th of June 2024.

“The Petitioners cannot invite the court to grant orders solely on their interpretation of the law on such serious provisions. I reiterate my innocence on the said allegations,” says Chebochok.

He adds that the lobby groups should not be allowed to mislead the court into holding there was no inquiry into pertinent issues as at the time of elections of the directorship of Tegat/Toror Tea Factory simply because they want to force a different outcome than one that was validly reached.

He says he has been unwarrantedly embarrassed before his family, friends, farmers and other members of the Public courtesy of the news outlet which aired the documentary without determining the veracity of the allegations of the said women employees.

“Had the story been thoroughly investigated, the documentary could not have been aired the callous manner as it was. The impugned letters are simply, sadly, an unwarranted continuation of the propaganda started by the BBC News Africa via misleading documentary,” claims Chebochok.

He further state that BBC News Africa has no constitutional nor statutory mandate to determine integrity of any person nor entity.

“They had no such mandate to clear me for purposes of the directorship elections using the said aspects,” says Chebochok.

BLOW TO RUTO AS COURT NULLIFIES HEALTH LAWS BUT GRANTS PARLIAMENT TIME TO AMEND ILLEGAL SECTIONS.

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Lawyer Harrison Kinyanjui with his the petitioner Joseph Aura addressing press at Milimani Law courts building./PHOTO BY S.A.N.

BY SAM ALFAN.

President William Ruto suffered yet another blow after High Court declares three Acts under which the Kenya Kwanza Administration to roll out universal health coverage, illegal.

Justices Alfred Mabeya (presiding) Freda Mugambi and Robert Limo declared the entire Social Health Insurance Fund Act, 2023, the entire Digital Health Act, 223 and entire Primary Health Act, 2023 are unconstitutional.

The judges, however, suspended the quashing of the laws for 45 days after Attorney General submitted that a vacuum created by the nullification of the laws would lead to a crisis.

In a bid to give Parliament to redeem itself, the judges suspended the declaration for 120 days for MPs to undertake sensitization, adequate, reasonable, sufficient and inclusive public participation in accordance with the constitution before enacting the said Acts and amend the unconstitutional provisions.

“Being cognizant of the importance of the impugned Laws and the input that has already gone into their enactments and recognizing the purport of the enactments as far as realization of the rights under Article 43 of the Constitution we are prepared to give Parliament an opportunity to redeem itself and save the Laws. The breaches that tainted the Laws are redeemable within our findings and can be corrected,” the judges said.

The judges said failure to comply with the directive, the laws will stand nullified by November 11, 2024.

The court agreed with activist Joseph Aura who had filed the petition through lawyer Harrison Kinyanjui challenging the new three health Acts.

“We agree that there is a reason for apprehension as expressed by the petitioner. This is so because the current section was introduced ignoring a key principle under Article 201(a) which emphasizes on the need for openness, accountability and public participation in financial matters, ” said the bench.

The laws were challenged by Joseph Enock Aura among others, who argued that the government appointed hundreds of community health promoters without affording the county governments a say in the programme.

“The community health promoters were appointed without ensuring whether they have a training, experience or any background on healthcare. This means that even a handcart pusher would get the job.

These are people who are supposed to keep peoples’ data,” he said through his lawyer Harrison Kinyanjui.

Kinyanjui said the bills were never subjected to effective and mandatory public participation as there was no form of participation that was conducted in Kiswahili language and that the bills were hurriedly read in Parliament on September 26, 2023 during the second reading on the same day.

The court questioned section 38 was introduced without the benefit of Public participation.

In their responses, AG and former health CS, National Assembly and senate had defended the laws maintaining that the social Health Insurance Fund was established under the Act for that purpose and that there is nothing unconstitutional with section 38 since the constitution under Article 206(1) allows the same which court disagreed.

While urging the High Court to quash the Social Health Act, 2023, the Primary Health Act, 2023 and the Digital Health Act, 2023, Aura said the laws make it mandatory for Kenyans to register with the fund before getting government services.

He told the three judge bench consisting of Justices Alfred Mabeya, Robert Limo and Fred Mugambi that it is illegal to deny Kenyans services for not registered under the fund.

“Section 47(3) of the SHIF, 2023 is equally unconstitutional as it implies that every Kenyans MUST a prior be digitized via unique biometric, in order to be recognized as statutorily ‘compliant ‘with the provisions of SHIF, 2023,” he submitted through his lawyer Harrison Kinyanjui.

He further told the court that National Assembly and the Senate failed in their mandate to ensure the three legislations adhered to the constitution.

“The National Assembly and the Senate stepped outside their constitutional mandate in purporting to legislate the 3 impugned laws without viable public participation, ” lawyer Kinyanjui submitted.

Kinyanjui submitted that by passing the three health laws without viable public participation, the outcome of the said legislation is unconstitutional.

He also questioned the criteria used to pick the community health promotors, arguing that most of them had no background in medical field.

Even a wheelbarrow and handcart pusher or mama mboga can be picked meaning they will enter the wrong information to the data system,” he told the bench during hearing.

During the hearing, Aura told the judge Enock Mwita section 20 of the Primary Health Care Act comprises unconstitutional edicts, serving alien, and diabolical agenda not sanctioned by Kenyans and it violates Article 187(2)(b)of the Constitution.

“The National government cannot assume responsibility over health function micro implementation, as assigned by the fourth schedule,” submitted lawyer Kinyanjui.

WHY TRIO WANT PARLIAMENT DECLARED ILLEGAL.

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National Assembly Speaker Moses Wetangula.

BY SAM ALFAN.

Three Kenyans have sued the National Assembly and the electoral commission over delay to conduct a by-election in Banisa Constituency and implementation of the two-thirds gender rule.

Activist Peter Agoro together with Mr Anthony Murimi and Augustine Muthiani want court to declare that Parliament is illegal and unconstitutional as currently constituted over the gender rule and the delayed by-election.

In a petition filed at the High Court in Milimani, the petitioners want a declaration that the Independent Electoral and Boundaries Commission (IBEC) has violated the rights and fundamental freedoms of the people of Banisa Constituency for failing to conduct the by-election within 90 days as stipulated in the Constitution.

The parliamentary seat fell vacant in March 2023 following up the death of Kulow Hassan.

They pointed out that on April 21, 2023 the National Assembly Speaker Moses Wetang’ula declared the seat vacant paving way for a by-election. On April 21, 2023 the National Assembly Speaker Moses Wetang’ula declared the seat vacant paving way for a by-election.

The activists said the people of Banissa have been deprived of a person of their choice to represent their interests in the National Assembly in line with Articles 94 and 95 of the Constitution.

Agoro pointed out that Article 101 (5) of the Constitution provides that a by-election ought to be held within 90 days of the occurrence of the vacancy.

“In the absence of a Member of Parliament for Banissa Constituency, then the National Assembly cannot transact business as it’s unconstitutionally constituted,” Mr Agoro said.

The three further want the court to issue an order compelling the electoral body to conduct by-election for Banissa constituency within 30 days.

They are also seeking an order for the IEBC to provide a detailed schedule for the conduct of the said elections within a specific period.

HIGH COURT OUTLAWS COMMISSION OF INQUIRY INTO SHAKAHOLA TRAGEDY.

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A self-proclaimed pastor Paul MacKenzie linked to Shakahola.

BY SAM ALFAN.

President William Ruto has suffered a setback after the High Court invalidated the Tribunal he appointed to probe the Shakahola tragedy.

High Court Judge Lawrence Mugambi said the President overstepped his mandate by assigning duties to the tribunal that rightly belonged to constitutional bodies.

The Judge issued an order to quash the Kenya Gazette notice No 5660 published on May 4, last year that purported to establish the Commission of Inquiry into the Shakahola tragedy. The tribunal was to be chaired by Appellate Judge Jessie Lesiit.

“A declaration is hereby issued that to the extent that Section 3 of the Commission of Inquiry Act gives the President unrestrained discretionary power to appoint a serving Judge to the Commission of Inquiry undermines the principle of separation of powers and is a threat to the independence of their Judiciary,” Justice Mugambi said.

The Judge dismissed an assertion by the Head of Public Service, Felix Kosgey, that President Ruto had consulted Chief Justice Martha Koome before appointing Justice Lesiit to head the tribunal. “The scheme of things signified by Section 3 of the Commissions of Inquiry Act has no place in the present constitutional dispensation,” Justice Mugambi pointed out in the 70-page judgment.

The Judge allowed the petition lodged by Azimio La Umoja One Kenya Coalition on May 8, last year following public uproar of the shocking Shakahola tragedy.

“I am satisfied that the President assigned the Commission of Inquiry into the Shakahola tragedy a mandate that the Constitution specifically set aside for independent constitutional bodies and offices. The President has no authority to do so,” the Judge said.

“It is the finding of this court that Section 3 of the Commissions of Inquiry Act is a relic of the imperial presidency, is not aligned with the current constitutional values and principle on separation of powers and independence of the Judiciary. It is unconstitutional, null and void,” the Judge said.

By establishing a tribunal with parallel mandate, the Judge reasoned, the Head of State had virtually undermined power and authority guaranteed to independent public bodies.

Paul McKenzie Nthenge, the key suspect in the Shakahola deaths, was arrested on April 15, last year. The police launched investigations after members of the public volunteered information.

Interior Cabinet Secretary, Kithure Kindiki, by Kenya Gazette notice No 52 and 53, declared the expansive Chakama Ranch an operation zone. Public access was restricted and search and rescue efforts were launched by the police.

The Senate reacted by setting up an ad hoc committee on April 27, las year to investigate proliferation of religious organizations. Senate Speaker Amason Kingi accompanied the Committee, led by Senator Danson Mungatana, to the Chakama Ranch on April 30.

BRAVE JUDGE DAVID MAJANJA TAKES FINAL BOW.

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High Court Judge and Judicial Service Commission commissioner David Majanja.

BY SAM ALFAN.

High Court Judge David Majanja, a prolific and brave judicial officer, has died.

Majanja, an amiable and celebrated beacon of justice, took the final bow on Tuesday while undergoing treatment in Nairobi.

Chief Justice Martha Koome, who chairs the Judicial Service Commission (JSC), broke the news of Justice Majanja’s transition. “We are all heartbroken.”

“Justice Majanja will be remembered as a towering figure in the development of our transformation post-2010 jurisprudence and a crucial pillar on the institution-building of the JSC and the Judiciary,” Justice Koome said.

“We stand in solidarity with the family, friends and the entire Judiciary and the JSC community during this very difficult period of mourning,” the Chief Justice said.

“The Judiciary and the JSC family calls for sensitivity and compassion as we come to terms with this sudden loss and share in grief with one another and with the people of Kenya,” Justice Koome said.

Justice Majanja, who was admitted to the bar in 1998, served briefly in private practice before his appointment to the bench in 2011.

He was among the newly-recruited Judges who rekindled the High Court with timely and well-reasoned judgments. He earned many accolades from his peers, juniors and seniors in equal measure for bringing sobriety and decorum to court proceedings.

His colleagues on the bench had confidence in his leadership and compassion. They elected him to the JSC as their representative, where he was serving his second term.

Justice Majanja previously served in the Constitutional and Judicial Review Division, the Civil Division and the Commercial and Tax Division in Nairobi. Thereafter, he was posted to Homa Bay, Migori, Kisumu and Kisii.

In his quest for academic excellence, Justice Majanja qualified for a Master of Laws (LLM) on International Trade and Investment Law in Africa from the University of Pretoria (South Africa) in 2005.

Justice Majanja will be remembered for his involvement in public interest litigation. He was Assisting Counsel in the Commission of Inquiry into Post-Election Violence (the Tribunal appointed by retired President Mwai Kibaki to investigate the 1997/98 Post-Election clashes).

At the JSC, Justice Majanja chaired the Administration of Justice Committee and sat on the Judiciary Rules Committee. Previously, he was a member and later Vice-chairperson of the Judiciary Working Committee on Election Preparations (JWCEP).

ACTIVIST WITHDRAWALS CASE AGAINST KURA BOSS KINOTI.

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Kenya Urban Roads Authority (KURA) Chief Executive officer Silas Kinoti.

BY SAM ALFAN.

An activist who had sought the removal of the Kenya Urban Roads Authority (KURA) boss Silas Kinoti over claims of procurement irregularities has withdrawn the case.

Ezekiel Oyugi wanted the KURA boss removed and for the court to declare him unfit to hold public office.

However, in an affidavit seen by NairobiTimez.co.ke, Oyugi changed tune but maintained that he has not been intimidated, coerced or blackmailed to withdraw the petition.

The activist said the decision was made in good faith.

“The information I was relying on this petition was inaccurate. There will be no other petition filed regarding the same parties touching the subject matter,” says Oyugi in his affidavit of withdrawal filed in court.

High Court judge Chacha Mwita allowed the application for withdrawal and marked the case as settled.

Oyugi filed a constitutional petition in May seeking several orders against the KURA boss over alleged irregularities in the procurement of three road projects at a cost of Sh13.2 billion.

He accused Kinoti and EACC of violating the obligations imposed on them by Chapter Six of the Constitution, specifically Articles 73(1) & 2(b to e), and 75(1) of the Constitution.

The alleged projects are the establishment of bus rapid transit line, which was done at a cost of Sh6.5 billion.

“A declaration that, as pleaded, the Respondent impugned actions and omissions contravened Articles 1, 2, 3(1), 4(2), 10, 24, 27, 28, 29(a) & (f), 30(a) & (b), 40,47(1), 73, 75, 232(e) & (f), and 259(1) of the Constitution of Kenya, 2010,” he seeks in his petition.

Oyugi is also accusing the KURA boss over the Nairobi transportation system establishment and junctions’ improvement project phase 1, which cost the taxpayers Sh6.7 billion and also the Nairobi Outering Road improvement project.

He says KURA irregularly entered into contracts with an international company for consultancy in the establishment of the bus rapid transit line on May 24th 2022 for a period of 39 months and the Nairobi Intelligent transport system establishment and junction’s improvement project phase on May 5th 2022 for a period of 34.5 months.

The Project Financing Agreement was irregular and contrary to Section 60 (1) of the Public Procurement and Asset Disposal Act 2015.

“The delay in commencement of works for the establishment of bus rapid transit line project despite Sh174.9m being set aside for the acquisition of non-financial assets,” he says.

He said the delay in commencement of works caused low absorption of development partner’s loan.

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